Court refuses to order referendum rerun

A seven-judge Supreme Court has unanimously refused to order a rerunning of the 2012 Children’s Referendum after finding a Dublin woman had failed to prove an unconstititional government information campaign “materially affected” the yes outcome.

The court yesterday clarified the test which must be met for a challenge to a referendum or election result to succced, warned of an “inevitable danger of partiality” from government information campaigns which differ from those of referendum commissions and stressed the need for “every conceivable care” to be taken to ensure fair running of referendums.

Mr Justice Donal O’Donnell said “unacceptable interference” with the will of the people arose from the Government’s information campaign in this referendum involving an unlawful spending of €1.1m of public money on a one-sided campaign favouring a yes vote.

If spent lawfully, that money would have just duplicated the efforts of the Referendum Commission established to provide “fair and neutral” information to the people, he said.

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Of particular importance in this case was article 6 of the Constitution, a “powerful republican statement” that the “sole temporal source” of power in this republic is the people themselves.

Mr Justice Frank Clarke agreed with the clarified test for referendum challenges but stressed when, unlike the Children’s Referendum the margin in a referendum is very small, “a very different finding” could be reached.

In the case of elections, a candidate may be deprived of victory over established serious misbehaviour in the electoral process even if it was not clear that misbehaviour affected the outcome in the sense of those elected, he said.

In four concurring judgments, the court dismissed Joanna Jordan’s challenge to the constitutionality of laws governing the bringing of petitions disputing the results of referendums, with the effect a certificate making the referendum result final can now be issued.

Ms Jordan, of Glenageary Road Upper, Dun Laoghaire, who campaigned for a no vote, previously obtained leave to bring a petition aimed at overturning the yes result.

She relied on the McCrystal ruling the Government spend of €1.1m public monies on a one-sided information campaign was in clear disregard of the constitutional limits on what the State may do in a referendum.

She also relied on landmark Supreme Court decisions in proceedings by former Green Party MEP Patricia McKenna – which established what are known as the McKenna Principles – that the State is constitutionally prohibited spending public monies to advocate support for a particular side in a referendum.

The High Court rejected Ms Jordan’s petition on grounds she had failed to prove, as the 1994 Referendum Act requires, that the Government’s information campaign “materially” affected the outcome.

It also dismissed her claim the “material” affect standard was impossible to prove and therefore unconstitutional.

Yesterday, all seven Supreme Court judges agreed that what is required in cases where a breach of the McKenna Principles is found, as in this case, is “a harmonious balance” between the competing constitutional principles, obligations and rights.

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